PlanningBlog – Brodies LLP

There was a lively examination of environmental impact assessment (EIA) at our recent seminar. We travelled (not literally, unfortunately!) from Skye to Madrid, St Andrews and included a visit to Donald’s Trump’s development at Menie in Aberdeenshire, pausing to mention appeals for waste sites in Portobello and Perth.

The message for developers is that more work is required, and that work will be earlier in the process.

Reform of the Scottish planning system was touched on. The thresholds in the new hierarchy of development  are not synchronised with the EIA thresholds. That means that some EIA development might be classed as local development, with the potential for the planning application being delegated to an officer for decision. The trap for the unwary is that the time limit for determination under delegated powers cannot be extended by agreement, so the developer can run out of time to “appeal”  to the local review body (delegated decisions cannot be appealed to the Scottish Ministers/ reporter). Although twice as long is allowed for determination of planning applications for EIA development, that time quickly vanishes ……

A delegate highlighted the difficulty marrying the new pre-application consultation requirements for a major development with the need for EIA. Consult too early, and there will not be enough detail for some people; but delaying consultation until later in the process risks EIA and design work having to be revised. Unfortunately there is no right answer on this one.

The no new matters rule in appeals/ reviews will put pressure on developers to ensure that all the environmental information is in the application before it is decided by the planning authority. It is risky to rely on the Scottish Ministers/ reporter exercising their powers to require EIA, or submission of further environmental information.

Although non compliance with EIA rules is a favourite line of attack for objectors, the Scottish courts have dealt with very few EIA cases. The judges have generally been disinclined to get bogged down in technicalities.

English and European court cases have taken a purposive approach, stressing the objectives of the EIA rules. Environmental effects cannot be properly analysed if there is too narrow a focus: is the development actually an integral part of a more substantial development? For example, although the Madrid urban ring road was divided into 15 sub-projects, it was incorrect to only subject one of those sub-projects to EIA. Where works to an airport enabled much greater use of the facility, the EIA had to consider not just the works, but also the increased activity. Arguing for too narrow a focus for the EIA might therefore be storing up trouble in the courts later.

The legislation has now been changed to confirm that in multi-consent projects the need for EIA has to be considered both at the initial (planning permission in principle – PPP) and later (approval of matters specified) stages. Planning authorities need to condition a grant of PPP to ensure that the development cannot extend beyond the parameters assessed – a recent consent had a condition listing 98 drawings! Clarity in the ES about the parameters used will help planning authorities.

The caselaw also shows that the potential for mitigation should not determine whether or not EIA is required. The survey results and mitigation should be in the ES, and only non-significant surveys/ mitigation should be dealt with by planning conditions.

The availability of alternative sites has always been a awkward issue for the planning system. Caselaw has clarified that the EIA legislation does not require alternatives to be examined, but the ES must mention what alternatives have been studied. A subtle distinction, but an important one for developers.